G.K.R Karate (U.K.) Ltd v Yorkshire Post Newspapers Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0111-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENF 1999/1293/A2 |
| Date | 11 January 2000 |
[2000] EWCA Civ J0111-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(SIR OLIVER POPPLEWELL)
Royal Courts of Justice
Strand
London WC2
Lord Justice May
Lord Justice Tuckey
QBENF 1999/1293/A2
MR G CARMAN QC and MR M WARBY (Instructed by Farrar & Co, London W2A) appeared on behalf of the Appellant
MR P MOLONEY QC (Instructed by Dibb Lupton Allsop, Leeds LS1 and Berrymans Lace Mawer, London EC2M) appeared on behalf of the Respondents
Tuesday 11th January 2000
May L.J.
Introduction
The claimants, GKR Karate UK Limited, promote and teach Go Kan Ryu karate. They operate, among other places, in the Leeds area. The first defendants publish the Leeds Weekly News in whose issue of 14 th August 1997 appeared an article written by the third defendant, Mrs Holmes, under the headline "GIVE 'EM THE CHOP". The article was critical of the claimants. It quoted statements made to Mrs Holmes by the second defendant, Mr Porch, who is general administrator of the English Karate Governing Body.
In these libel proceedings, the claimants say that the article was defamatory of them. They claim damages for libel against each of the three defendants. They say that the natural and ordinary meaning of the publication was (in summary) that the claimants rip people off by taking money for karate club membership and then just disappearing; carry out no checks on the standard or background of their instructors; overcharge for karate lessons; teach karate through instructors who are not properly qualified; falsely claim that they have full insurance cover; and in consequence give karate teaching a bad name and should be shut down.
The first and third defendants ("the Newspaper defendants") have a common interest in the proceedings. By their defence they plead a Lucas-Box meaning for the publication:
"? that because of its unacceptable business practices ? the [claimants are] not a fit and proper body to instruct people in karate, but a disreputable and unethical body which puts its own profits ahead of the safety of its students or the interests of the sport of karate."
The Newspaper defendants plead justification of this meaning and they give particulars extending to 25 detailed paragraphs. They also plead that the words were fair comment on a matter of public interest. They say that the words were published on an occasion of qualified privilege, of which they give particulars. By their Amended Reply, the claimants plead extensively to the particulars of justification. They say that the words complained of do not constitute comment or that, if they do, they were not fair comment. They deny that the occasion of publication was privileged. They say alternatively that the Newspaper defendants were actuated by express malice, of which they give particulars. They say that the Newspaper defendants have not pleaded any justification of meanings of the publication alleged by the claimants and it is to be inferred that they knew that they were false or were reckless as to their truth or falsity. They say in substance that, if the Newspaper defendants had carried out proper inquiries, they would have found out that the publication was untrue. They say that the Newspaper defendants should have made close inquiries before making the publication. Instead they relied on Mr Porch whose purpose was to drive the claimants out of business and who was a manifestly tainted source. The Newspaper defendants knew or ought to have known this. If they did not know that this was Mr Porch's purpose, the Newspaper defendants were reckless as to the truth or falsity of the published allegations.
Mr Porch's Defence and the Reply to it are similar to those in the case of the Newspaper defendants, but the particulars of malice alleged against him are substantially more extensive. The claimants have also brought separate libel proceedings against Mr Porch alone arising out of a letter written by him dated 5 th June 1997. Common issues arise in the two actions which are to be heard together.
On 15 th December 1999, Sir Oliver Popplewell, sitting as a judge of the High Court, held a pre-trial review in anticipation of the trial which is fixed to begin on 11 th January 2000. Among other decisions, he ordered, at the request of the Newspaper defendants and against the opposition of the claimants, that two issues should be heard and determined at the outset of the trial by the judge and jury before the hearing and determination of the other issues. The two issues are (a) whether the article in the Leeds Weekly News was published on an occasion of qualified privilege and, if so, (b) whether in publishing the article the Newspaper defendants or either of them were actuated by express malice. The important effect of the order is that the issues of privilege and malice in the action against the Newspaper defendants are to be heard and determined before the issue of justification. The advantages of the judge's order are obvious. It is reckoned that the trial of the preliminary issues will take 3 days or so, whereas a full trial which included the issue of justification would take 4 to 6 weeks. The order does not affect the cases against Mr Porch which are to proceed in full whatever the outcome of the preliminary issues. To that extent, the order does not mean that the claimants may be denied an opportunity of vindication.
The claimants appeal against the judge's order of preliminary issues. The judge refused them permission to appeal saying that the order was made in the exercise of his discretion and that he did not believe that there was any prospect of a successful appeal. He pointed out that the potential saving of time and cost would be enormous. Laws L.J. gave permission to appeal on 22 nd December 1999. This court heard submissions on the appeal on 5 th January 2000. At the end of the hearing, the court dismissed the appeal but reserved its reasons. These are my reasons for having concluded that the appeal should be dismissed.
The judge's judgment
The judge said that it would be his responsibility at some stage in the trial to decide whether a claim to privilege was available to the Newspaper defendants and to rule whether there was evidence capable of amounting to malice and, if so, for the jury then to consider the issue of malice. On the issue of privilege, he quoted from the opinion of Lord Nicholls of Birkenhead in Reynolds v. Times Newspaper Limited [1999] 3 W.L.R. 1010 at 1027. He referred to the proposed evidence of Mrs Holmes in which she stated that, before publishing the article, she had spoken to and received information from Mrs Pauline Green, who had complained about the activities of the claimants, and from Mr Burnand, an instructor. Mr Burnand suggested that Mrs Holmes spoke to Mr Porch, which she did and he made statements to her which she included in the article. She stated that she tried to contact the claimants but was unsuccessful. [The claimants deny that she tried to contact them.] The judge said that the Newspaper defendants would have to rely on the evidence of Mrs Holmes. She would have to accept that she made no further inquiries, but the judge considered that there was an arguable case of privilege. As to malice, the judge considered the particulars in the Amended Reply. He referred in particular to the contention that there were parts of the claimants' meaning of the publication which the Newspaper defendants had not met with any plea of justification.
The judge said that the court had ample powers, apart from those introduced by the Civil Procedure Rules 1998, to control the way in which litigation is conducted to save cost and time. He had to balance the advantage to the Newspaper defendants of having an opportunity, if their claim of privilege is upheld, to establish this relatively quickly against any risk of unfairness to the claimants. The claimants said that, if the order was made, they would not be able to deploy all the material available to them. Their case was that an investigation into what inquiries the newspaper should have made before publishing the article could not fairly be separated from the question whether the article in its natural and ordinary meaning was true. The Newspaper defendants did not intend to call as witnesses on the proposed preliminary issues either Mr Porch or the other two people to whom Mrs Holmes spoke. It would in particular be unfair if the jury did not have the opportunity of judging what sort of a person Mr Porch was, since it was relevant to the issues of privilege and malice to judge whether he was apparently reliable or manifestly unreliable.
The judge said that the jury would have to consider the state of mind of Mrs Holmes when the article was published. She made no further inquires beyond those referred to in her statement. Her state of mind had to be tested at the end of her conversation with Mr Porch. She had not seen Mr Porch and the jury's view of him would be no different from hers, if he is not to be called on the preliminary issues. Whether he may be manifestly unreliable was not relevant to whether she had an improper motive. The judge considered that it would cloud the waters. The jury would be inclined to attribute malice in Mr Porch, if they so found, to Mrs Holmes. Evidence (other than that available to her at the time) designed to establish that Mr Porch was unreliable would be irrelevant to her state of mind at the time of the...
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